FRANCISTOWN: A 32-year-old man imprisoned to a cumulative period of 45 years has decided to abandon his application to overturn all his convictions and sentences concerning all his offences.
In 2017, then Magistrate Dumisani Basupi made an order for Nka’s 15-year sentences to run consecutively, which resulted in him having to spend 45 years in jail.
Before Nka made the current application for bail pending appeal against his convictions and sentences, he had in June this year made an application for an acquittal and discharge before Justice Matlhogonolo Phuthego.
Nka then argued that since his record of proceedings from the lower court in respect of all the offences was taking forever to be transcribed and has not been availed to the High Court to enable him to properly prepare his appeal against his convictions and sentences, he was greatly prejudiced by the status quo since he was already in jail.
Therefore, Nka pleaded with the High Court to accept his application because his constitutional right to be heard in court within a reasonable time has been infringed upon.
However, the state countered Nka’s application saying that his application before the court was procedurally improper since he had applied to be discharged even before making an application to appeal his convictions and sentences.
“Upon perusal of the applicant’s application, I found out that he has made an application for acquittal and discharge because his record of proceedings of his three cases from the lower court has not been availed to him. The officer who was transcribing his cases has since been transferred to Lobatse from Francistown, but she has told me that she has already started to transcribe it,” Bianca Ockhuizen from the Directorate of Public Prosecutions said. Ockhuizen also submitted that it is trite law that when an appeal for the dismissal of a conviction and sentence is made, which she reiterated that, in any case, Nka has not made, he should show that he has spent a considerable period in jail and will be prejudiced against if his application is not heard timeously because he is about to complete his sentences while awaiting the case record. The prosecutor, therefore, prayed with the court to dismiss Nka’s application because he has not even served half of his first 15-year jail term. But on Tuesday, Nka changed course after he briefly consulted with his attorney Chakalisa Gunda.
He then decided to abandon his application for discharge since his case record from the lower court was now available following its transcription.
“I consulted with my client and he has decided to abandon his application for discharge... I prefer to proceed with my heads of argument, which I will file in court after perusing the record,” Gunda said.
Justice Phuthego then set Nka’s application for bail pending trial on November 9, 2021, for a hearing to decide whether Nka has prospects of success or not.